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Document #0004-NN
ABC
VISION: To improve the health of all Texans.
MISSION: TMA supports Texas physicians by
providing distinctive solutions to the
challenges they encounter in the care of
patients.
TMA Office of the General Counsel
Subpoenas for Medical
Records
April 2003
The following is a general description of the law in this area; your facts may
differ. Because your facts may vary, you should contact your own retained
counsel for legal advice and representation in a specific fact situation.
What is a subpoena?
A subpoena is a legal document, issued in the course of a lawsuit, which is used to
compel the attendance of a witness at a judicial proceeding or a deposition. The
Latin word subpoena means "under penalty;" thus, failure to obey a subpoena
may carry some legal consequence. When you receive a subpoena, you are
required to appear at a certain time and place in order to provide testimony.
How are subpoenas issued?
A party in a legal proceeding simply requests that a notary public, certified
shorthand reporter, an attorney authorized to practice in the state of Texas, or the
clerk of the court issue a subpoena. Subpoenas are generally not issued with the
blessing or approval of the judge.
Can a subpoena be issued by a notary public, Texas attorney, or a court
reporter?
Yes. The Texas Rules of Civil Procedure allow subpoenas ordering persons to
appear at depositions to be issued by an attorney authorized to practice in the state
of Texas, certified shorthand reporters or "any officer authorized to take
depositions" - which includes Notary Publics (Texas Rules of Civil Procedure,
1
Rule 176.4). In other words, a subpoena may be valid even if it is issued by
someone other than a judge or court clerk.
Is this what authorizes “document retrieval” companies to issue
subpoenas?
Yes. Document retrieval companies do not issue subpoenas on their own
initiative; they only do so when an attorney requests them to do it. So, when you
receive a subpoena from one of these firms, it is not they who want the records,
but an attorney in a lawsuit.
Is it true that the Texas legislature outlawed notary subpoenas for medical
records?
Senate Bill 667, enacted in 1995 by the 74th Texas Legislature, added a new
subsection to the Medical Practice Act’s “exceptions to confidentiality in court or
administrative proceedings” (V.T.C.A., Occupations Code, §159.003(a)(12)),
where release is now apparently authorized "to a court or a party to an action
under a court order or court subpoena." The exception was intended to invalidate
subpoenas issued by notary publics and court reporters. This amendment to the
law subsequently proved to have operational problems, which required an
additional amendment that, in effect, returned the law to its prior status.
When will I see a subpoena issued by a judge or court clerk?
Only when you are summoned to a trial setting. Notary publics may not issue
subpoenas which summon witnesses to court. Although empowered to do so,
judges rarely ever personally issue subpoenas in civil cases, either for discovery
proceedings or the trial itself.
How long do I have to respond to a subpoena?
The Texas Rules of Civil Procedure do not specify a time for compliance with
subpoenas. A subpoena will usually have a date on it which tells you when you
must appear (or when you must bring documents and things if it's a subpoena
duces tecum.) This is the “return” date. The usual practice is to make subpoenas
returnable one week to ten days after issuance. When attorneys use document
retrieval companies, they may want to come and copy records “because they are
in the area.” This is more for the convenience of the document retrieval company
than the attorney issuing the subpoena. If in doubt, ask to be served with the
subpoena first so you can see the actual return date for yourself.
In some cases you may receive a subpoena which is returnable “forthwith” or
“instanter.” Instanter literally means “instantly” or “without delay.” There is
no explicit requirement that the return date on the subpoena be reasonable, but
if you think the time is unreasonable, you can either request that the party
issuing it change the time or make a motion to the court to “quash” the
subpoena.
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Why do I have to obey a subpoena when the case has nothing to do with
me and compliance is just a waste of time?
According to Rule 501 of the Texas Rules of Civil Evidence, "....no person has a
privilege to: 1) refuse to be a witness, 2) refuse to disclose any matter, or 3) refuse
to produce any object or writing," so "stonewalling" will not be a good response.
See the question below about disobeyance of subpoenas. The U.S. Supreme Court
put it this way: “there is a public obligation to provide evidence, and this
obligation persists no matter how financially burdensome it may be.” Hurtado v.
U.S., 410 U.S. 578 (1973).
When is a subpoena valid?
To be valid, a subpoena must 1) be issued in the name of "The State of Texas," 2)
state the style of the suit and its cause number, 3) state the court in which the suit
is pending, 4) state the date on which the subpoena is issued, 5) identify the
person to whom the subpoena is directed, 6) state the time and place to attend and
give testimony at a deposition, hearing, or trial, and/or produce and permit
inspection and copying of designated documents or tangible things in the
possession, custody, or control of that person, 7) identify the party at whose
instance the subpoena is issued, and the party’s attorney of record, if any, 8) state
the text of TRCP Rule 176.8, which discusses enforcement of subpoenas, and 9)
be signed by the person issuing the subpoena. (TRCP, Rule 176)
Who can serve a subpoena?
Subpoenas may be served by any sheriff, constable, or any other person over
eighteen years of age and not a party to the proceeding. Thus, you do not have to
receive the subpoena from any law enforcement officer (although you may) for
the subpoena to be valid. Often, the subpoena is delivered by an employee of a
party's lawyer, or the lawyer himself.
How far are subpoenas valid? In other words, can a subpoena
issued in one city force me to comply when I live in another
city?
A civil subpoena is only valid against persons who reside or are found within one
hundred and fifty miles “from a county in which a suit is pending.” (Tex.
Civ.Prac. & Rem. Code 22.002)[Vernon 1997]). Thus, a subpoena from a Dallas
court is not valid against someone living in El Paso. However, any person who
visits Dallas, even for a brief period of time (e.g. switching planes at DFW) can
be "tagged" (i.e. served with a subpoena) with a subpoena stating the name of a
Dallas court, and the subpoena will be valid because the person was “found”
within one hundred and fifty miles of the court.
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What is a "subpoena duces tecum?"
Technically known as a “subpoena for production of documentary evidence,” a
subpoena duces tecum literally means "under penalty you shall take it with you."
This type of subpoena is used to compel a witness to bring to court or a deposition
any relevant documents that are under the witness' control. A subpoena duces
tecum may be issued in either civil or criminal cases. When you receive a
subpoena duces tecum, you are required to appear at a certain time and place and
bring documents and things with you. However, it is usually intended that you
merely hand over the documents or things.
When I receive a subpoena duces tecum for medical records,
what fee am I entitled to be paid for my trouble?
Prior to 1995, a person who received a subpoena was entitled to be paid one dollar
“for each day the witness attends court” and six cents per mile for travel. In 1995
the Legislature increased the fee to ten dollars “for each day the witness attends
court” but no mileage reimbursement.
(Tex. Civ.Prac. & Rem. Code
22.001)[Vernon 1997]. However, if you are not required to attend court, you are
not entitled to the ten dollar fee (Tex. Civ. Prac. & Rem. Code 22.004(b))[Vernon
1997]). In addition, the Legislature enacted the following provision:
A custodian for a record who receives a request for production or certification of a
record under a subpoena, a request for production, of other instrument issued
under the authority of a tribunal that compels production or certification of a
record is entitled to $1 for production or certification of the record. If more than
one record is produced or certified, the custodian of the records is entitled to only
one fee under this section.
(Tex. Civ.Prac. & Rem. Code 22.004(a)[Vernon 1997]). In other words, you are
entitled to a fee of $1 for copying the entire medical record when responding to a
subpoena.
The Texas State Board of Medical Examiners set rules for the
fees we can charge for copying medical records. Why can’t
we charge that fee when we get a subpoena?
Because the rules of the Board of Medical Examiners do not override an act of the
Legislature. It is customary to pay a professional person their fee in such
circumstances, because attorneys do expect to incur reasonable fees in the conduct
of litigation. Thus you may send the attorney who issues the subpoena a bill for
copying fees, and it is suggested that the fee be no more than that set by the Board
of Medical Examiners: $25 for the first twenty pages and 50¢ per page thereafter.
If an affidavit is requested, certifying that the information is a true and correct
copy of the records, a reasonable fee of up to $15 may be charged for executing
the affidavit.
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However, it would be inadvisable to refuse to comply with the subpoena before
receiving the fee, since the Texas Rules of Civil Procedure do not absolutely
require parties to lawsuits to pay the persons upon whom they serve subpoenas
for either the documents requested or the time necessary to attend a deposition or
court hearing (unless the person subpoenaed is called to testify as an expert
witness.)
Therefore, a party receiving a subpoena duces tecum may send a bill for their
overhead costs, handling or preparation fees, as allowed by the Board of Medical
Examiners, but there is no absolute requirement that the attorney issuing the
subpoena has to pay that bill.
Sometimes we get paid a higher amount when records are
subpoenaed in a federal lawsuit, such as where the patient is
a plaintiff in one of the breast implant cases. Is federal law
different when it comes to payment for records subpoenaed?
In this regard federal rules are somewhat more liberal. While neither state nor
federal rules sets forth a recommended or allowable fee to be paid to witnesses
who are subject to subpoenas for production of documentary evidence, the federal
Rule 45(c)(1) has a unique provision as follows:
A party or attorney responsible for the issuance and service of a subpoena shall
take reasonable steps to avoid imposing undue burden or expense on a person
subject to that subpoena. The court on behalf of which the subpoena was issued
shall enforce this duty and impose upon the party or attorney in breach of this
duty an appropriate sanction, which may include, but is not limited to, lost
earnings and a reasonable attorney’s fee.
The rule goes on to provide that, where a witness objects to the subpoena, the
court may issue an order to compel production which “shall protect any person
who is not a party or an officer of a party from significant expense resulting from
the inspection and copying commanded.” Rule 45(c)(2)(B). There is no precise
parallel in the rules of the Texas Supreme Court relating to state court litigation.
I often receive a document called an “affidavit” with the
subpoena which I am told I have to fill out and have
notarized. This is annoying since we have to leave the office,
find a notary public and pay their fee. Why do attorneys do
this to us?
Attorneys often request medical records in a format that will be admissible as
evidence in court. This format includes the use of an affidavit signed by the
custodian of the medical records in order to make the records "self-authenticating"
under Rule 902 of the Texas Rules of Civil Evidence. While many object to doing
this, it is actually a favor to the physician since it eliminates the need to actually
appear in court or at a deposition.
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In order for the medical records to be self-authenticating, the medical records
custodian must sign the affidavit stating that they are: 1) the custodian of the
records, 2) that the records are kept in the regular course of business, 3) that it was
in the regular course of business for the physician, with knowledge of the
condition or diagnosis recorded, to make the record, and 4) that the record was
made at or near the time of the event (diagnosis, treatment, etc.) or reasonably
soon thereafter.
Sometimes a subpoena comes with a document called
“Affidavit Concerning Cost and Necessity of Services.” What
is this?
The Affidavit Concerning Cost and Necessity of Services is authorized by 18.001
of the Civil Practice and Remedies Code. This allows the patient’s attorney to
create a presumption that the physician’s fees were reasonable and/or that the
medical treatment was necessary, sufficient to support an award out of which the
fees will be paid. It also may save the physician or their employee a trip to court!
The opposing party may contest the matter by filing “counteraffidavits.” Although
this is not technically a question about subpoenas, such documents are sometimes
served with the subpoena or shortly afterwards.
What fee can I charge to fill out the affidavit?
See 22.004(a) of the Civil Practice and Remedies Code cited above: One dollar.
When you fill out the affidavit you are essentially certifying the documents as
being true and correct. See the question about fees above. While the Texas State
Board of Medical Examiners has issued that a reasonable fee of $15 may be
charged, just as with the copying fee, there is no absolute requirement that the
attorney has to pay that bill. It appears, though, that the one-dollar is not in
addition to the dollar you receive for copying the records.
What can happen if I refuse to obey the subpoena?
Judges may force people to comply with subpoenas by issuing court orders. A
judge is likely to issue an “Order to Produce” to persons who refuse to attend a
deposition, refuse to answer valid questions at a deposition, or refuse to take
validly requested documents and things to a deposition. The Order to Produce
will order the person receiving it obey the subpoena. Failure to obey the Order to
Produce may be contempt of court, though the judge may first issue an “Order to
Show Cause,” demanding an explanation why a person disobeying an Order to
Produce should not be held in contempt. If the judge is not satisfied with the
explanation, the judge can hold persons in contempt and fine or jail them for each
day they fail to obey the subpoena.
If a subpoena duces tecum asks for the release of “all
records” of a patient, does that include medical records and
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other material we may have from hospitals and/or other
physicians?
Most attorneys in litigation practice, whether plaintiff or defense, maintain that a
subpoena for “all records” or “each and every record” means just that - all the
medical records you have in your office pertaining to a patient, regardless of their
original source. If the party to the lawsuit who subpoenas the information later
learns that any records were withheld under a subpoena for “all records,” it is
likely that someone in the office will be deposed as to the possible reasons why
the records were withheld, and there may be suggestions that it was done with the
intent to conceal something. An Order to Produce as outlined above may be the
outcome.
If the affidavit asks me to swear that all records are “true
and correct” and “made in the course of treatment of the
patient,” can I withhold medical records from other sources
when I cannot truthfully swear to this?
Some attorneys in litigation practice believe the correct response is to state which
portions of the medical records you can swear are true and correct, etc., and which
portions you cannot swear to. Thus, you comply with the subpoena and give a
complete response. If the party issuing the subpoena does not like the answer (that
you cannot swear that some part or parts of the medical record are true and
correct) then that is his problem.
When do I need the patient’s written consent to release
medical records in order to respond to a civil subpoena?
In general, if you receive a subpoena in a case where your patient is a party to the
suit, you may safely assume that all parties have been notified and have had an
opportunity to object or seek to quash the subpoena. Records can then be released
under the subpoena.
If your patient is not a party to the suit, then you cannot assume all parties have
been notified. In such case, consider this advice published in Texas Medicine:
If you cannot determine from the subpoena that the patient’s medical records can
be released or if you have some well-justified concern about releasing patient
records (for example, confidential information about another person who has not
consented to the release is in the medical records), then you may contact the
requesting attorney and ask for a signed written authorization under Rule
205.3(c), Texas Rules of Civil Procedure. The attorney who represents a party
may seek the medical release, which can then be forwarded to the physician.
Medical records may then be provided as directed by the subpoena.
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Suppose my patient is a plaintiff in a personal injury suit. The
defense issues a subpoena duces tecum for medical records,
but the patient/plaintiff tells me not to release the records or
comply with the subpoena in any way. I tell this to the
defense attorney and he informs me that I could be held in
contempt of court for not obeying the subpoena. The
patient/plaintiff’s attorney next informs me that he will sue
for unauthorized release of confidential information if I do
obey the subpoena? What do I do?
The generally accepted methods to challenge the validity or scope of a subpoena
are to file a “Motion to Quash Subpoena” and/or a “Motion for Protective Order”
- not simply make threats. That way the trial judge can rule on the attorney’s
objection -which is usually based on confidentiality grounds. If the
patient/plaintiff’s attorney has not informed you that he or she will file one or
both of these motions, then you have been placed in an untenable position through
no fault of your own, but you still have to respond in some way.
You should immediately contact your own retained legal counsel if the patient’s
attorney will not file a Motion to Quash. Your lawyer can contact the opposing
parties and try to determine what the problem is. It is possible that your lawyer
will have to independently challenge the validity of the subpoena by filing a
“Motion to Quash Subpoena” and/or a “Motion for Protective Order.” Although
not common, this is done sometimes in litigation, particularly where a party to
suit does not want certain things discovered but is prohibited from directly
objecting to that discovery. If this happens your lawyer can ask for the court to
award you attorney’s fees.
Why can’t attorneys agree about the proper procedure?
There has been some effort to do this. The TMA Committee on Liaison with the
State Bar of Texas and the Committee on Coordination with Other Professional
Groups of the State Bar of Texas have negotiated a document called “Code for
Physicians and Attorney of Texas.” It was approved by the Board of Directors of
the State Bar of Texas in 1992. The Code provides as follows:
When the attorney for the defendant arrives at the stage of the case where he
requires the records of the patient’s doctor, he should jointly notify the doctor and
the patient’s lawyer. At this point, the patient’s lawyer should determine if the
patient’s records are properly subject to subpoena.
If the records are subject to subpoena, or if access to the records will not be
contested, the patient’s attorney should obtain his client’s written consent for
release of the records and deliver this release to the doctor.
Although this Code has been approved by both the Board of Directors of the State
Bar of Texas and the TMA House of Delegates, it does not have the force of law
because it is not a Texas Rule of Civil Evidence or a Texas Rule of Civil
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Procedure. Note also the language in the procedure outlined above is aspirational
in nature (“..attorney should obtain...”) and not mandatory. Nevertheless, you
might share this information with attorneys and records retrieval companies in
hopes they will change their behavior.
What about criminal cases?
There is little in the way of pretrial discovery in a criminal case that resembles
civil litigation. Physicians are most likely to see Grand Jury Subpoenas for the
records of patients, or trial subpoenas issued by either the State or the defendant.
In some rare cases a physician will see a criminal subpoena for a pretrial hearing.
In any event, the criminal trial subpoena will be issued by court personnel, while
the criminal Grand Jury Subpoena will be issued by a prosecutor, Grand Jury
Foreman or District Judge. One will never see a criminal subpoena of any type
issued by a Notary Public or Certified Shorthand Reporter. A criminal subpoena
may also be a "subpoena duces tecum."
Aren’t medical records confidential in criminal cases?
Under Texas law no physician-patient confidentiality is recognized in criminal
prosecution in which the patient is a victim, witness, or defendant. The difficult
part is to determine when a prosecution has begun. A criminal case set for trial is
certainly a prosecution. A Grand Jury Subpoena also is evidence of a prosecution,
as is a demand for medical records issued by a county medical examiner under
Article 49.25 of the Code of Criminal Procedure. However, when no one has been
arrested or charged with a crime, and the law enforcement agency is simply
investigating a suspected crime, no criminal prosecution has yet begun and
physician-patient confidentiality is still recognized.
When I receive criminal subpoenas, I usually have to take the
original medical records with me to court. This makes me
uncomfortable since I’ve always been told never release the
originals. Why do attorneys do this?
If the criminal subpoena is valid, it will usually require that someone actually
appear in court and bring the original medical records with them. The originals
will usually be admitted into evidence, with copies later substituted. However, if
the trial judge insists that the originals remain in evidence, there is little that can
be done. Criminal evidence law is more stringent about such matters. It is often
the case that evidence introduced in criminal cases becomes the de facto property
of the state forever after. Thus, make your archival copies before going to court.
9
When I receive criminal subpoenas, I usually have to go
downtown on short notice and sit around the courthouse
waiting to be called as a witness. Why don’t they just depose
me?
Remember I said there is little in the way of pretrial discovery in criminal cases
that resembles civil litigation? There are no depositions in criminal cases, only
courtroom hearings. It is often the case that the lawyer issuing the subpoena prosecutor or defense- has only a short time to prepare for trial, so it is not
uncommon to receive a subpoena on Friday for a trial setting the following
Monday. This is due to the nature of criminal law practice, and not any attempt on
the attorney’s part to harass you - the last thing they want is an angry and
uncooperative witness. Again, there is little that can be done except to contact the
court or attorney and inquire when you will be actually called as a witness so as
not to waste time sitting outside the courtroom.
This general legal information about subpoena issues is not a substitute for
specific legal advice. You may wish to contact your own retained counsel for
legal advice and any necessary representation in a specific fact situation.
Are there special rules for those of us that have to comply
with HIPAA privacy regulations?
Yes, there are special rules. The regulations state:
45 CFR § 164.512 Uses and disclosures for which consent, an
authorization, or opportunity to agree or object is not required.
(e) Standard: disclosures for judicial and administrative
proceedings.
(1) Permitted disclosures. A covered entity may disclose
protected health information in the course of any judicial or
administrative proceeding:
(i) In response to an order of a court or
administrative tribunal, provided that the covered entity discloses
only the protected health information expressly authorized by such
order; or
(ii) In response to a subpoena, discovery request, or
other lawful process, that is not accompanied by an order of a court
or administrative tribunal, if:
(A) The covered entity receives satisfactory
assurance, as described in paragraph (e)(1)(iii) of this section, from
the party seeking the information that reasonable efforts have been
made by such party to ensure that the individual who is the subject
of the protected health information that has been requested has
been given notice of the request; or
(B) The covered entity receives satisfactory
assurance, as described in paragraph (e)(1)(iv) of this section, from
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the party seeking the information that reasonable efforts have been
made by such party to secure a qualified protective order that
meets the requirements of paragraph (e)(1)(v) of this section.
(iii) For the purposes of paragraph (e)(1)(ii)(A) of
this section, a covered entity receives satisfactory assurances from
a party seeking protecting health information if the covered entity
receives from such party a written statement and accompanying
documentation demonstrating that:
(A) The party requesting such information
has made a good faith attempt to provide written notice to the
individual (or, if the individual’s location is unknown, to mail a
notice to the individual’s last known address);
(B) The notice included sufficient
information about the litigation or proceeding in which the
protected health information is requested to permit the individual
to raise an objection to the court or administrative tribunal; and
(C) The time for the individual to raise
objections to the court or administrative tribunal has elapsed, and:
(1) No objections were filed; or
(2) All objections filed by the
individual have been resolved by the court or the administrative
tribunal and the disclosures being sought are consistent with such
resolution.
(iv) For the purposes of paragraph (e)(1)(ii)(B) of
this section, a covered entity receives satisfactory assurances from
a party seeking protected health information, if the covered entity
receives from such party a written statement and accompanying
documentation demonstrating that:
(A) The parties to the dispute giving rise to
the request for information have agreed to a qualified protective
order and have presented it to the court or administrative tribunal
with jurisdiction over the dispute; or
(B) The party seeking the protected health
information has requested a qualified protective order from such
court or administrative tribunal.
(v) For purposes of paragraph (e)(1) of this section,
a qualified protective order means, with respect to protected health
information requested under paragraph (e)(1)(ii) of this section, an
order of a court or of an administrative tribunal or a stipulation by
the parties to the litigation or administrative proceeding that:
(A) Prohibits the parties from using or
disclosing the protected health information for any purpose other
than the litigation or proceeding for which such information was
requested; and
(B) Requires the return to the covered entity
or destruction of the protected health information (including all
copies made) at the end of the litigation or proceeding.
(vi) Nothwithstanding paragraph (e)(1)(ii) of this
section, a covered entity may disclose protected health information
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in response to lawful process described in paragraph (e)(1)(ii) of
this section without receiving satisfactory assurance under
paragraph (e)(1)(ii)(A) or (B) of this section, if the covered entity
makes reasonable efforts to provide notice to the individual
sufficient to meet the requirements of paragraph (e)(1)(iii) of this
section or to seek a qualified protective order sufficient to meet the
requirements of paragraph (e)(1)(iv) of this section.
So, in those circumstances where you do not receive a HIPAA compliant
authorization form or a court order, you may only release the information if you
receive a written reasonable assurance as outlined in the regulation (along with
supporting documentation), you provide the notice that would have been required
of the requestor, or you seek a qualified protective order yourself.
NOTICE:
PLEASE CHECK THE TEXAS MEDICAL BOARD WEBSITE
(www.tmb.state.tx.us) FOR CURRENT UPDATES ON ITS RULES AND
POLICIES WITH RESPECT TO THIS ISSUE.
NOTICE: This information is provided as a commentary on legal issues and is
not intended to provide advice on any specific legal matter. This information
should NOT be considered legal advice and receipt of it does not create an
attorney-client relationship. The Office of the General Counsel of the Texas
Medical Association provides this information with the express understanding
that 1) no attorney-client relationship exists, 2) neither TMA nor its attorneys are
engaged in providing legal advice and 3) that the information is of a general
character. Although TMA has attempted to present materials that are accurate and
useful, some material may be outdated and TMA shall not be liable to anyone for
any inaccuracy, error or omission, regardless of cause, or for any damages
resulting therefrom. Any legal forms are only provided for the use of physicians
in consultation with their attorneys. You should not rely on this information when
dealing with personal legal matters; rather legal advice from retained legal
counsel should be sought.
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